In this Article 226 petition challenging the rejection of a Commissioner's appointment application in a civil appeal regarding a suit for specific performance and cancellation of a sale deed, the High Court found no error of jurisdiction by the appellate court and dismissed the petition.
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Neutral Citation No. - 2023:AHC:132500
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 5450 of 2023
Petitioner :- Shiv Charan Singh (Since Deceased) And 6 Others Respondent :- Bhallu Singh And Another Counsel for Petitioner :- Manish Tandon
Hon'ble Jayant Banerji,J.
Heard Shri Manish Tandon, learned counsel for the petitioners.
This petition has been filed seeking to set aside the order dated 24.3.2023 passed by the Additional District Judge, Court No.14, Kanpur Nagar in Civil Appeal No.58 of 2022 (Shiv Charan Singh and others vs. Bhallu Singh and another), a copy of which has been enclosed as Annexure No.8 to the petition.
It appears that a suit for specific performance and for cancellation of the sale deed executed in favour of the predecessor of the petitioners namely, Shiv Charan Singh, was filed by the plaintiff-respondent No.1 Bhallu Singh, bearing original suit No.419 of 1988. The suit was partly decreed pursuant to a judgement dated 31.5.2022 directing that the sale deed dated 25.1.1988, that was registered on 13.1.1989, be cancelled. Against the decree, the petitioner-defendants filed the Civil Appeal. In that appeal, an application dated 19.11.2022 was filed under Order 26, Rule 9 of C.P.C. seeking appointment of a Commissioner. By the impugned order dated 24.3.2023, the application that was numbered as 29 (ग) was rejected.
It is urged by the learned counsel for the petitioners that the vendor of the sale deed executed in favour of the predecessor of the petitioners never denied the validity of the sale deed during her lifetime, and yet the sale deed has been cancelled by the trial court. No other argument has been advanced.
A perusal of the application filed by the petitioner (Paper No.29-C), that has been pointed out by the learned Counsel at Annexure No.7 to the affidavit, reveals that it was filed stating that the predecessor-in-interest of the petitioners purchased the disputed land on 25.1.1988 prior to the date of the filing of the suit and thereafter developed the disputed land and made plantations on it, and also constructed a house over it. It was stated that all the aforesaid true facts are liable to be brought before the Court and, as such, the report of the Advocate Commissioner ought to be obtained.
The appellate court rejected the application while observing that the prayer made in the application has no bearing on the issue involved in the appeal and, as such, the application was rejected.
I find no error of jurisdiction in the order passed by the appellate court.
The petition is, accordingly, dismissed .
Order Date :- 5.7.2023 K.K.Tiwari
(Jayant Banerji, J.)
Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad
1 issue framed by the court
Whether the Trial Court committed an error of jurisdiction in rejecting the application for appointment of a Commissioner in Civil Appeal No.58 of 2022.
Shiv Charan Singh and others
Bhallu Singh and another
Jayant Banerji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
